SUMMARY OF SERVICES PERFORMED FOR ICSOM

BY LEONARD LEIBOWITZ FOR THE PERIOD SEPTEMBER 2007 TO AUGUST 2008

This summary of services performed during the year between conferences is submitted each year to all ICSOM delegates.

This report covers organizational services as well as sample problems of individual orchestras. It is not all-inclusive, as it would be virtually impossible to list every phoned-in question, minor written request for information, etc., which I handle on a daily basis. It is intended to set forth, in report form, some of the more substantive matters on which I spent time. It is also intended to inform the delegates of problems encountered by other orchestras and ICSOM so as to provide each delegate with a starting point of investigation in the event a similar problem arises in his or her orchestra.

As many of you know, I am also counsel to the Symphonic Services Division of the AFM. Many of the questions and issues that come across my desk from non-ICSOM orchestras are nevertheless relevant and potentially applicable to ICSOM orchestras. Thus, I have included some of those issues in this report for the education and information of the delegates.

ORGANIZATIONAL SERVICES

As usual, I attended the annual mid-winter Governing Board Meeting. Those annual meetings, together with the conference calls and emails, are the ways in which the business of ICSOM is attended to during the period between annual conferences.

In addition, I participated in regularly scheduled Governing Board conference calls.

INDIVIDUAL ORCHESTRAS

ANN ARBOR BALLET ORCHESTRA

By letter dated June 25, 2008, the employer notified the Union that it was “terminating the Agreement with the Ann Arbor Federation of Musicians, Local 625. This notice … is to be effective immediately.” The cba had an expiration date of August 31, 2008.

The question asked of me was “did the AABT need to bargain with the Union regarding this alleged “termination?” The cba also contained the following provision: “This agreement shall cover any presentation by AABT that utilizes the services of an orchestra.”

My answer was:

The AABT situation is rather complex. It is true that the employer may not unilaterally terminate the contract during its term without agreement of the union. Nor can they refuse to bargain with the union for a successor agreement for the one that is soon to expire. However, it appears to me that the union has two major problems.

1. The current agreement has a provision that seems to permit the employer to accomplish what it is seeking to without terminating the contract. The last sentence of Article 2 implies, at least, that they may simply not utilize musicians at all, and just use a tape. The contract does not prohibit that, and the players have no minimum guarantee of employment.
2. In addition, if they just wait for the contract to expire they can legally lockout the musicians because the union has filed an F-7, which covers the union’s right to strike, and the employer’s right to lockout.

By the way, I assume this orchestra is covered by the NLRA, otherwise why file an F-7? Nevertheless, the “termination” of the contract now is in fact a violation of the Act. So, at this point, my advice, if they in fact terminate the agreement now, is to file an ULP charge and see if the union can negotiate some more protective language for the next contract.

As of this writing, the issues have not been resolved.

ARIZONA OPERA

During cba negotiations, there was concern among the musicians that the management was considering dispensing with the current orchestra and, instead, contracting with the Phoenix Symphony for the use of its orchestra.

Although the existing labor agreement contained a “right of first refusal” for all tenured members, I was asked whether the Union needed a “no subcontracting” clause as well; and if so, what language would be most protective.

In light of the “right of first refusal” language, it is probably unnecessary to fight over a “no subcontracting” provision. In fact, if the language was not achieved, the issue of the employer’s right to subcontract might be strengthened before an arbitrator, who would likely ask why the union asked for the language if it thought that the “first refusal” language was sufficient protection.

The matter was ultimately settled by a “letter of Agreement” in which the orchestra members were guaranteed right of first refusal as follows: “Contract musicians shall have the right of first refusal on any service offered, sponsored or presented by the Arizona Opera Company which uses their position and/or instrument.”

However, if they were sure they could get it, the most protective language is simply, “There shall be no subcontracting of any orchestra services to any other group of musicians.”

CATSKILL SYMPHONY

A member of this per service orchestra (the cba does not contain any number of guaranteed services), found her service count for the upcoming season was substantially fewer than in previous years. When she inquired the reason of the Orchestra Committee Chair, she was told it was due to a shouting match between her and the Music Director while he met with a group of potential donors. She denied shouting and claimed it was merely a discussion. She sought the Union’s intervention.

The Union investigated. The Union obtained written statements from a number of her colleagues who disputed her story and confirmed that she was shouting and completely out of order. Although she never filed a formal grievance, she wanted copies of these statements. Did the Union have an obligation to give them to her? My answer was:

I do not believe that the Union needs to turn over the statements of the witnesses, who I assume gave their statements in confidence, either explicitly or implicitly. Moreover, since she did not even file a formal grievance, she would have no grounds to file a charge that the Union breached its duty of fair representation.

CHARLESTON SYMPHONY

After a tentative agreement had been reached, but before a Memo of Agreement was signed, and before the orchestra was asked to vote on ratification, an outside, preseason gig was offered. The management of the CSO offered to pay the newly-negotiated per service rate (which was an increase over the then current rate). The question was whether, prior to the signing of the a MOA and prior to ratification, could the Union agree to the higher rate.

The answer is yes. If the tentative agreement was rejected by the orchestra, and the subsequent negotiations produced a higher rate, that could be paid retroactively. It is highly unlikely that subsequent negotiations would produce a lower rate.

CHATAUTAUQUA SYMPHONY

Although the cba contained no guarantee of the amount of work or the number of productions, the Company had, for many years, done two productions per season. Then the management announced that it was going to do only one production this season.

Q: Was the management required to bargain with the Union over this issue?

A: While the number of productions is not a “past practice” issue per se, the change from two productions to one is surely a significant change in a mandatory subject of bargaining and the issue must be negotiated with the Union. Keep in mind, however, that in the absence of an agreement, the management could unilaterally implement the change.

COLORADO SPRINGS PHILHARMONIC

Q: Notwithstanding that a Peer Review Committee has non-renewed a Principal Cellist, does the Music Director have the authority subsequently to offer the appellant a section cello position (in other words changing it to a demotion)? The section cello position is open, and the demotion would not adversely affect any other cellists’ current employment. The appellant and the Union have agreed to this, but the Committee is opposed. Can the Union and the Employer agree to this without the Committee’s blessing?

A: Yes. The parties to a CBA are the Employer and the Union, not the individual members of the orchestra, nor any Committee (although in certain situations the committee is authorized by the union to act as the agent of the union so long as they have been officially granted that authority by the union). In the absence of such authority, the two parties to the CBA can agree on an interpretation of that CBA, or even settle a potential grievance without the approval of the Committee or any member(s) of the bargaining unit, who may disagree with the decision. The only limitation on the union’s right to do that is not a legal one, but one that is imposed by the By-Laws of the AFM, and that is, the union may not change the express terms of the CBA without a ratification vote of the bargaining unit. Since, as I understand the situation, the parties are not changing the CBA in any way, that limitation doesn’t apply.

COLUMBUS SYMPHONY

As some of you may have read on Orchestra-L, the Concertmaster of the CSP had a tax problem related to the tax depreciation of his instruments. The issue appeared to be whether he could claim the deduction on Schedule C as a self-employed person, or must be allocated in proportion to income, subject to a 2% limitation. I spent time reviewing the documents in the case, but ultimately it appeared that he may have misunderstood the question.

DULUTH (MN) SYMPHONY

Two issues arose:

1. The union filed a grievance over the proposed non-renewal of an orchestra member. The employer rejected the grievance and declared the matter “closed.”
   Obviously, neither side can unilaterally “close” the matter. When an employer refuses to proceed with a grievance, the union must move to the next step in the grievance procedure. Since the next step was arbitration, I advised the union to file for it. Upon receipt of a copy of the arbitration filing, the employer dropped the non-renewal.
2. At which agency should the union file for arbitration? The two choices are either the American Arbitration Association (AAA) or the Federal Mediation and Conciliation Service (FMCS). Until recently, I recommended the AAA because the FMCS had a policy of not appointing an arbitrator if an employer failed to respond to the union’s demand for arbitration. That policy has now been abandoned; the FMCS will follow the AAA’s practice of appointing the union’s first choice as the arbitrator, who will hold a hearing even without the employer’s presence. Since the services of the FMCS are free (not the arbitrator’s fees or expenses) and both agencies have the same lists of arbitrators, my recommendation now is to use the FMCS.

FLORIDA GRAND OPERA ORCHESTRA

With the shutdown of the Florida Philharmonic, the Florida Grand Opera needed to hire its own orchestra directly. A number is issues arose, including the status of former FPO members who were now seeking direct employment by the FGO. Ultimately, with the bargaining unit in place, a petition for certification was filed with the NLRB. After an NLRB-supervised election, the Miami local was certified.

FT. WORTH SYMPHONY

A musician in this orchestra received a written warning of the possibility of a dismissal for “just cause” arising out of her alleged “insubordinate attitude toward the Principal of the section of which you are a member.” The alleged “insubordinate behavior” was questioning, at a rehearsal, whether the crescendo should be done before letter H in the Beethoven Piano Concerto #5, First Movement.” The matter seems to have been resolved amicably, as it certainly should have been.

INDIANAPOLIS SYMPHONY

Once again, the issue of replacing a principal player for a particular piece, an entire concert(s), or for a recording session, arose. After discussion with me, the Union filed a grievance protesting the replacement. I believe the matter was settled, but I have no knowledge of the resolution.

LOUISVILLE ORCHESTRA

Q: We are running up against an issue stemming from the extended delay in getting all of our written language finalized from the re-opener you helped us with in 2006. As you recall, there was a list of language issues to be resolved after the main financial agreement was reached. One of those dealt with auxiliary musicians (subs and extras). The LOMC responded to a mandate from the musicians seeking more flexibility in making changes to the auxiliary lists for each instrument. Previously, changes were only allowed once every three years when auxiliary auditions occurred, and past practice said that once on a list, an auxiliary can’t be taken off.

The new language the LOMC came up with (which was approved by the LO musicians in October) allows for “alterations” between the triennial auditions when the music director and LOMC are consulted. While not mentioned specifically, the LO musicians intended the “alterations” to include possible deletion from these lists.

This language is being tested by a local musician who questioned why she wasn’t called to play any work during a temporary maternity leave vacancy in the cello section. The musician has lodged a complaint with the local. She didn’t know that she had been removed from the cello auxiliary list, since the cellos had met to take advantage of the new language. However, the local is now bothered by some issues that this has brought up.

Even though the new language allows for significant changes to our auxiliary lists, the majority of people on the LOMC do not feel that the local should have access to these lists. Joe Spain (Local president who incidentally says that he hasn’t signed off on these language changes), thinks the local SHOULD have these lists since the local is responsible for representing the auxiliary musicians and is a signatory to the CBA.

I am being pulled from both directions on this since I am now a board member at the Local AND a member of the LOMC. I feel like one “side” is going to question my loyalty when I weigh in on this! HELP! Is there any legal opinion on this issue that can get me out of no-man’s-land?

A: I’m afraid I don’t understand the Committee’s objections to giving the Local copies of the lists. The Local is the legally responsible representative of all the musicians employed by the employer and, as such, is entitled to the information in order to ensure that those musicians who are on the lists, and those who have been removed from them are properly represented. If the Local failed to carry out that responsibility because they didn’t have a copy of the list(s), they could be charged at the NLRB with a breach of the duty of fair representation, and be subject to the imposition of money damages. I don’t see how the “confidentiality” applies to the legal representative of the bargaining unit, or under what circumstances there could be a conflict of interest. Finally, if the individual musician has a right to challenge his or her removal, doesn’t the Local need to have the lists to know the full facts of the removal?

MEMPHIS SYMPHONY

How long must an orchestra wait for the return of a musician out on long-term disability leave? The musician received numerous release dates from her doctor, but she continued to refuse because she felt she wasn’t ready. Finally, management gave her a two-week ultimatum. My advice was the same as I’ve given to all of these many cases: Without a contractual provision setting a time limit on such cases, the only criterion for determining how long a management must wait, is whatever is reasonable under the circumstances. Since the long-term absence of a regular musician means that no audition can be held for the position, the artistic quality of the orchestra may suffer. On the other hand, every musician must be treated fairly without fear of premature termination. My feeling is that the parties should negotiate a fair period of time for the return of one out on LTD. This period should only be a minimum – if the union and employer in a given case are willing to extend the time for any number of reasons.

NEW JERSEY SYMPHONY

Q: I know that state laws often bar an employer from deducting fines from an employee’s pay. What is less clear to me is how to view the practice of docking pay pro rata for lateness or being AWOL. Is it a fine? Is it a de facto suspension without pay? Is it simply an employer declining to pay for hours not worked, similar to how an employer would treat an hourly worker who punches a time clock?

A: It is true that some states, e.g., New York, have statutes that prohibit deductions from one’s salary without express authorization from the employee. However, it would appear from the frequency of these deductions, that if the cba contains a provision allowing such fines, docking, etc., that such provision be authorization by each covered employee, satisfies the requirement.

PACIFIC SYMPHONY

Q: Is the Union negotiating team entitled to get from management the salaries of each individual musician?

A: First of all, I believe that the Union should receive copies of all musician’s’ individual contracts. If that happens, there would be no need to ask the management for the information. Since that was not the case in this orchestra, I believe the Union is entitled to that information from the management, since the information is “necessary and relevant” to collective bargaining. It is not necessary for the Union to have the names attached to the salaries, and for reasons of privacy, the names should be redacted.

PHILADELPHIA ORCHESTRA

A musician made the following request of the AFM-EP:

This letter relates to the rule on page 18 of the Summary Plan Description dated 2005, which states that no changes can be made in the form of benefit after the Annuity Start Date.

I have been a member of the orchestra since 1960. When I applied for my AFM/EWP Pension Benefit in November of 1992, I expected the greater part of my pension income to consist primarily of my pension benefit from the Philadelphia Orchestra Musicians’ Pension Fund and my AFM pension to be relatively small addition to that source. Expecting a comparatively small monthly payment from the AFM Pension, I chose the Joint and Survivor Annuity form of benefit.

In 2004, however, the Philadelphia Orchestra froze its old pension plan, and began contributing to my AFM/EPW account based on a percentage of my minimum weekly salary. The percentage has now reached 7.5%. Thus, circumstances have changed dramatically, and the benefit I am receiving from the AFM is higher than I ever could have anticipated, and will continue to rise as more and more contributions are made by my employer.

In light of the drastically changed circumstances, I feel justified in asking for an exception to be made, so that could be permitted to change my form of benefit to the Life Annuity. My wife, who has pension benefits from her own employment, supports this initiative.

In conclusion, I feel that I am being unfairly penalized for having had an AFM account prior to the Philadelphia Orchestra’s participation and at the very least, would request that a separate account be created which would enable me to choose the Life Annuity form of benefit for the future.

Answer from the Fund trustees: The Fund Office received your request to change the form of benefit under which all of your pension benefits are being paid from 50% Joint and Survivor Annuities to Life Annuities. Administratively, your request is denied because there is no provision in the Plan document which allows for a change of annuity type after payment of the pension benefit has started. … Please bear in mind that, in considering and reviewing appeals, the Administrative Committee has the sole and absolute discretion to interpret the terms of the Plan, and to decide matters concerning both the eligibility for, and the amount of benefit, due under the Plan. Accordingly, the decision of the Administrative Committee is final and binding on all parties.

The law is very clear that the decision of the Trustees of a Pension and Welfare Plan to make, enforce and interpret the rules and regulations of the plan is the final ruling unless that decision is in violation of law, or is discriminatory, arbitrary or capricious. None of those applies here.

PITTSBURGH SYMPHONY

Two section players, married to each other, had a three-month-old baby and were scheduled to go on a foreign tour. Having no relatives or friends in the area, they proposed that one of them be released from the tour to stay with the baby, but the management refused and insisted that both go on tour. My suggestion was to file a grievance, in light of a history of granting short-term leaves, and the fact that this refusal was unreasonable under the circumstances. I have not heard how this issue was resolved.

ST. LOUIS SYMPHONY

This year the U.S. Department of Labor investigated and determined that the Orchestra Committee, known in St. Louis as the “St. Louis Musicians Association,” was a labor organization. The decision was challenged, but if it stands, would likely apply to every orchestra or negotiating committee. We will discuss the ramifications of this decision at the conference. In short, it would impose a number of unneeded obligations on these committees. I have been in communication with the Chair of the SLSA, and will continue to monitor the situation.

SAN ANTONIO SYMPHONY

The cba states that a probationary player automatically gets tenured upon signing his/her third consecutive individual contract. One player was hired without audition for a one-year appointment. After his second season, he received his individual contract for the next season, which he signed and returned. However, management refused to grant him tenure on the ground that his first season was an appointment and therefore he was not on a tenure track until his second season and this latest individual contract was only his second consecutive one. My advice was to grieve the denial on the basis of the unconditional contract provision that clearly requires only three consecutive contracts – without exception or qualification. If there had been a past practice of not crediting the appointment years the result might have been different.

SHREVEPORT SYMPHONY

Q: Can an employer impose its final offer after the union has rejected it?

A: If the parties reach impasse (and that is a factual determination made by the NLRB after investigating the behavior of the union and the employer during bargaining, not merely the employer simply declaring it), the employer may legally impose that offer. The imposition does not constitute a contract, and therefore, the Union is free to strike at any time. In this case, the question was asked about the musicians signing their individual contracts and whether that would negate their right to strike. In my opinion, it does not. Individual contracts must be subservient to the cba and the law. The signing, which is required by the cba in order to indicate the willingness to continue to be employed subject to an ultimate agreement on a new cba. Failure to sign and return the individual contract within the prescribed time period could lead to dismissal.

SOUTHWEST FLORIDA SYMPHONY ORCHESTRA (FT. MYERS)

Q1: The orchestra’s attorney (a board member, not a labor lawyer) is threatening to cancel the scheduled negotiation if they do not have a proposal from us ahead of time. I never do that. Does his threat to refuse to meet with us without a proposal in advance constitute a refusal to bargain?

A1: I know that some like to make the first set of proposals in person at the first meeting. I actually prefer to send the proposals to management about a week before the first meeting. Besides saving a lot of time, it allows the union to take the offensive and ask why they have no counterproposal since they’ve had the union’s proposal for a week.

Q2: A violinist in the orchestra had maxed out on her excused absences, but had to bail out of a dress rehearsal and concert she fully intended to play, when her husband suffered a serious heart problem and had to be taken to the emergency room. The contract states: “Musicians shall be excused without penalty from any concert set or service for verifiable illness or injury which prohibits them from playing, or Act of God.” Does Act of God refer only to hailstorms and or other weather events, and not an emergency as described?

A2: It is true that the most common use of an “Act of God” clause is in terms of adverse weather conditions. Nevertheless, the definition is much broader than that, and includes fires, floods, insurrection, strikes and lockouts, etc. In other words, it relates to unforeseen circumstances beyond the control of the parties. This family emergency seems to me to fall into this category. In addition, while I believe that it is not technically applicable to this orchestra, the Family Medical Leave Act would cover this situation. If the orchestra seeks to discharge her, the Union has a very strong case. However, if they are only saying that they won’t pay her for the missed services, even the FMLA only provides unpaid time off.

UTAH SYMPHONY

One of the questions raised by this orchestra, and recent experiences in Jacksonville and Columbus, concerns an employer’s use of a lockout as an economic weapon. A lockout is the employer’s version of a strike. That is, a strike by the union says to the employer, “If we can’t reach agreement on a new contract, we will stop working for you until we agree.” In a lockout, the employer says, “If we can’t reach agreement I’m not going to allow you to come to work.” Both tactics are designed to put economic pressure on the other side to change their position and either agree with, or come close to agreeing with, the other side.

Most cba’s contain a “No strike – No lockout” provision that prohibits such actions during the term of the contract. However, in the absence of such a prohibition, the courts have held that the presence of a Grievance and Arbitration procedure in the cba also prohibits strikes and lockouts during the contract term, on the theory that disputes should be settled by grievance and arbitration rather than by economic warfare. At the expiration of the contract, each side is free to strike or lockout, even before impasse has been reached, provided that at least one side has sent the 60-day notice (F-7) prior to the expiration date and the 30-day notice to the Federal Mediation and Conciliation Service, and the state labor mediation board if one exists.

Strategically, an employer may decide to lockout for defensive reasons, such as to not allow the union to wait for a better time in the future to strike. Legally, a lockout may be offensive or defensive, and like a strike, can happen anytime after expiration of the contract.

Concerning unemployment insurance, most state laws do not distinguish between strikes and lockouts when applicants are disqualified for benefits due to “a labor dispute.” Some states, however, make a distinction and will provide benefits in a lockout, but not a strike. One state, New York, will pay benefits after 7 weeks of a strike or lockout.

The second question was whether, during negotiations, management’s “last, best and final” offer should be responded to with a “last, best and final” offer by the Committee. My answer is “no.” A Union should never make a “final” offer. It can lead to management declaring an impasse, allowing it to implement management’s final offer. Secondly, the Union should never make any formal counter-proposal after management makes what it calls a “final” offer because management is likely to reject it because management just said that their offer was final. The Union has merely lowered its position, in effect “bargained with itself,” without getting a new proposal (“Quid Pro Quo” or “this for that”) from management. If there is an offer the Union is prepared to make, it should be done “off the record,” where if it is rejected, the Union is not bound to it.

VIRGINIA SYMPHONY

Q1: Can a past practice prevail over clear contract language that is contrary to the practice?

A1: The only instance in which past practice is considered is if the contract language involved in the grievance is ambiguous, that is, subject to more than one meaning or interpretation, and therefore the practice helps to clarify the meaning by revealing the intention of the parties in writing the language. Where a contract provision is clear and unambiguous, that is, not subject to interpretation, it will be enforced despite any past practice to the contrary. In other words, clear contract language is the “best evidence” of what the parties intended when they agreed to, and wrote the language during negotiations.

Q2: Our CBA includes multiple instances where a “consultation” is required before the Music Director can act. One example: When filling a one-year vacancy in the orchestra when a musician takes a leave of absence, “The Music Director, in consultation with the Audition Committee, may appoint a replacement Musician or hold auditions for the position.” Other examples include a “consultation with the Principal of the section” before the Music Director can decide that “a part required by the score will not be covered.” Our CBA also includes instances where “permission” is required, such as rehearsals outside of a certain area “shall not be held without the permission of the Orchestra Committee.”

Please state your understanding of the specific meaning of “consultation” versus “permission” as it relates to management’s actions. Please state if the Symphony gives up their options regarding a consultation if they have a history of agreeing with the wishes of the Musicians in previous consultations, that is, can the Union argue for precedent based on the results of previous consultations?

A2: “Consultation” means simply a discussion, not permission. A history of agreement by the Music Director does not deprive him of that option even if he has always agreed with the musicians. The Union cannot argue successfully that “past practice” prevails in the face of such clear contract language.

WISCONSIN CHAMBER ORCHESTRA

The attorney for management demanded copies of the surveys used by the Union in preparing for negotiations. After speaking with me, Nathan Kahn, chief negotiator in the negotiations, answered as follows:

I have reviewed your correspondence of May 20, 2008. You assert that Section 8(b)(3) [of the National Labor Relations Act] entitles an employer to demand, and requires a union to provide, the union’s internal surveys made in preparation for negotiations. However, that assertion is not supported by any case law of which I am aware, nor is it supported by the authorities cited in your letter. Indeed, those authorities have nothing to do with a union’s internal survey of its membership. We do not believe that you are entitled to the surveys you have requested, and will not provide them to you. If you can point me to even a single case holding that there is an obligation to provide such surveys, we will reconsider your request.

This same attorney also responded to a Union proposal to include subs and extras in the bargaining unit as follows:

As you are also aware, because the Subs and Extras are not part of the bargaining unit, negotiations over their terms and conditions of employment is a permissive, not a mandatory, subject of bargaining under the Federal Law.  Just as negotiating over who will represent the WCOPC or the AFM is a permissive, and not a mandatory, subject of bargaining (i.e., neither the AFM nor the WCOPC is required to negotiate who shall serve as their representatives with the WCO).  I am certain you are aware of this fact, as you and the WCOPC has on more than one occasion pointed out during negotiations that the WCOPC would not negotiate either the make-up or representation of the WCOPC - which is your right to do.

Unfortunately, he was right on this one. The inclusion or exclusion of members of the bargaining unit is only a permissive subject of bargaining, and such subjects can only be negotiated if both sides agree to do so.

SENZA SORDINO

As usual, I reviewed every edition of Senza Sordino prior to publication, in addition to submitting a number of articles therefore.

8B Legal Counsel Report - 2008